A Somali connected to the milita and pirates carries his high-calibre weapon on a beach in the central Somali town of Hobyo. Photograph: Roberto Schmidt/AFP/Getty Images

--

Few countries are willing to prosecute and most captives suspected of sea piracy are eventually released

Ads By Google

The Absalon is a modern and well-equipped Danish warship, one of a new generation. It has stealth technology to avoid enemy radar, ballistic missiles that could sink an aircraft carrier, and on this Nato-led trip off the coast of Somalia, a small company of heavily armed special forces divers, with their own speedboat.

So it is hardly surprising the Somali pirates are feeling a little outgunned at the moment.

The pirates take to the seas off the Horn of Africa in small dhows, and even smaller skiffs, armed with old machine guns and pistols, wearing flip-flops, and gambling that they will be able to hijack a vessel before they run out of food or water, or drown.

Over the past year, the number of successful pirate attacks fell from 45 to 24, and more than 120 others were foiled. But nobody involved in the military mission off the coast of east Africa believes the battle has been won. In fact, many senior officers believe the counter-piracy operation has reached a critical point.

Commanders estimate that for every pirate captured and sent for trial, another three or four are released. This year dozens of pirates have been put quietly back to shore, despite good evidence to support prosecution.

None of the countries in the region want to take a lead in piracy cases, and those that have been persuaded to take suspects – notably the Seychelles and Kenya – are essentially full up, and showing reluctance to take any more.

None of the governments sending warships to the area, including the UK, wants them either, even though the pirates cost the world economy an estimated $6.9bn (£4.3bn) last year.

So, without fanfare, more and more of the suspected pirates are being freed, the incentive to hunt them is slightly diminished, and the Somali criminals can hardly believe their luck. "When I have told them [the pirates] that we are putting them back to shore they are more or less celebrating," said Commander Anders Friis, captain of the Absalon. "They are very, very happy."

The Absalon has captured 58 suspected pirates during six months patrolling the Somali coast. Only eight are facing trial.

In February, it seized a crew of 17 suspected pirates and waited to hear which nation would volunteer to take them for prosecution. Thirty-eight days later, they got the answer: not one.

All of the suspects were taken back to shore close to where they had been caught, so they would not be set upon by rival tribes or gangs.

The Absalon's medics noted the men were, on average, 2kg heavier and far healthier than when they were captured. A further 16 suspected pirates captured in April spent three weeks in the makeshift cells of the ship's cargo area. Lawyers working on Absalon thought the case against them was strong, but they can only recommend prosecution. Someone has to be willing to "host" a trial, and there aren't many takers. Last week 12 of the pirates were released.

The ship's commander, Anders Friis, is stoical and says he is not frustrated. But he adds: "We are professional. We are doing our job. Obviously it is best to get them prosecuted.

"My problem is this … every time we are putting people to shore [the pirates] have been informed about how these things work, what our tactics are. It makes it more difficult to solve the problem because they are developing their own tactics."

A senior member of his crew was less diplomatic. "It is a ridiculous situation. We are doing what we were asked to do, but we end up going round and round in circles. We have become a prison ship, not a warship."

The problems of piracy from Somalia have been growing since 2005. Although it is an international problem, it was deemed serious enough by David Cameron to make it a UK foreign policy priority, which is why London hosted a conference on Somalia in February.

Beset by civil war, poverty and famine, and unable to compete with modern international fishing vessels from other countries, some Somalis, backed by criminal gangs, turned to piracy to make money – and judged by this criterion alone, they have been extremely successful.

Even though hijackings were down last year, the pirates raised $159.6m from 31 paid ransoms, including $13.5m for the release of the Greek-owned tanker Irene SL, which was carrying 2m barrels of oil. That was the highest sum ever paid.

On average, hostages are held 178 days, but some are kept much longer. Some do not come back at all: 24 died last year.

In Somalia, the economic model for piracy is working well. In 2010, the US, EU and the UK gave the country a combined $298m in aid – less than half the sum pocketed by the pirates when light aircraft dropped waterproof containers full of cash into the waters near their beach settlements.

This activity has changed the economic model for the whole shipping industry, which spent $5.5bn last year on combating the problem, according to the Oceans Beyond Piracy study by the One Earth Future foundation (OEF).

Ships are having to reroute and take on armed guards, and the companies that own them are paying hefty insurance premiums, as well as the ransoms. With more than 42,000 commercial ships travelling through the waters around Somalia every year, and no end to the supply of pirates, the incentives are weighted in favour of the criminals rather than business.

This has provoked governments to set up three military missions – run by Nato, the EU, and a multinational "combined task force"– which patrol the expanses of sea in which the pirates mostly operate.

In terms of disrupting attacks, the naval missions, which have 16 warships, have just had their most successful year, but warning lights are already flashing for the future.

Though 1,089 piracy suspects have been seized in the past five years, there are signs legal systems are gumming up with new cases, and that the courts have already reached saturation point in the Seychelles and Kenya.

There is also concern about the pirates developing new tactics, and changing the rules of the game. "In 2011, we witnessed a worrying development," says the OEF study.

"In some instances, after receiving a ransom, pirates have released the vessel but not all of the crew. In other cases the vessel has been abandoned and hostages have been taken ashore in Somalia, where pirates have demanded a ransom for their release."

Attacks on tourist resorts in Kenya, such as the one that led to the death of the Briton David Tebbutt last September, is another concern. His wife, Judith, was released in March after a ransom was paid.

Because the warships cannot operate inside the territorial waters of Oman and Yemen, that is where the pirates are heading – another sign the criminals are trying to adapt to new circumstances, rather than give up the trade.

Aboard the warships in the current taskforce off Somalia, the captains and crews feel they have a good understanding about the pirates, how they operate, and how to capture them.

As well as the frigates and destroyers, the French have an Awacs surveillance plane in the area. Although no Nato official will admit it, the assumption is the US is supplying intelligence from unmanned drones operating from a base to the north in Djibouti.

The Guardian was shown a series of classified surveillance photographs used by Nato commanders. They reveal the position of the pirate camps and how they are set up. In some cases the pictures are so clear it is possible to make out faces.

The sites are home to up to 45 men, and are incredibly basic. They are often square, with upturned boats providing cover for sleeping and the most rudimentary workshops for repairing outboard engines.

The coastal towns of Eyl and Garacad in the north, and of Hobyo, further south, have been the focus of Nato's attention, and by carefully mapping which dhows are moored where, the warships can tag the ones they want to track.

The pirates on the beach are only the foot soldiers, but it is not difficult to identify the "Mr Bigs". They are the ones who have built modern houses with stone walls close to fishing villages that haven't changed in decades.

"The pirates are very much aware of what is going on," says Friis. "They have an extended network and they adapt. They are sharing information and developing new tactics ... and they are getting much tougher."

The proof, he says, is in the way suspected pirates behave when the Absalon approaches.

"They are more or less ignoring us," he says. "They know we will act in self-defence and they know that it is not a very good idea to point their guns at us. They also know we have strict guidelines about not hurting anyone."

Trying to unravel the pirates' machismo is also a challenge. When the Absalon seized 16 suspected pirates on 11 April, Friis gave them a chance to go free.

"They had taken some Iranian and Pakistani hostages so we had to separate them from the pirate suspects," said Lieutenant Commander Claus Krum, a veteran of five piracy missions.

"Once we'd done that we told the suspected pirates they could stay with us or get into a skiff and return to Somalia, and we would not shoot them. They chose to stay." He adds: "They have a totally different mindset, and a code. They don't want to lose face.

"Some of them may already be in debt and will fear they will get beaten up if they go straight back to Somalia. They don't show any anger or remorse or guilt."

Better, then, for the pirates to take their chances on the Absalon, in the hope that they will probably be released in a few weeks, credibility intact.

Krum is not the only officer on board the Absalon who has concluded that the counter-piracy operation is a sticking plaster, and that the only way to stop piracy is to tackle the poverty at its source. "Somalia needs more subsidy, and probably peacekeeping forces on the ground too. Until then, we have to try to deter and avoid piracy."

Mathais Buck, the Absalon's chief legal officer, ensures the captured men are looked after in the caged cells in which they are kept most of the day and night.

The suspects are given carpets to pray on, magazines, regular health checks and the same food as the ship's crew. "This isn't like two conventional armies in conflict.

"We are not at war. It is the pirates against countries that are used to having laws governing what they do."

That means that the Danes will not want to keep them on board for too long without getting them legal representation, and since so few countries are prepared to mount prosecutions, the pressure to let them go increases with every passing day.

Captain Jeremy Hill, commander of the American frigate USS Taylor, admits it is getting harder to distinguish between legitimate fishermen and the pirates.

Both go to sea in the same places, in same sort of dhows and armed with the same type of guns.

"If there is a grey area, we err on the side of caution without a doubt." Hill says that Nato "doesn't want us to let up at all", but everyone involved in the military mission is aware of the negative publicity that comes with setting suspects free. Hill admits he would now notify the overall commander of the Nato mission before detaining anyone.

"The significant part of the solution is on land," he says. "It is not just up to Nato to find a legal solution."

In fact, it is not up to Nato at all. Once a Royal Navy warship has detained suspects, it is up to the UK to assess the strength of the case, and then cast around for a country to take on the prosecution – if it is not prepared to take it on itself.

The prospect of Somali pirates being brought to trial here, where they would undoubtedly apply for asylum, is one of the reasons ministers have vehemently refused to accept any cases.

"The legal finish is a problem, but it is one that is completely out of military control," said one senior naval officer, who spoke on condition of anonymity.

"For every pirate that goes to legal finish there are three or four that end up being put back ashore. "I still think there is huge value in disrupting activity … but people do hold a lot of store by getting the pirates to court, and the legal success rate is very low."

Jack Lang, the UN secretary general's special adviser on Somali piracy, believes the ratios are even worse than that, claiming last year that "90% of pirates captured by states patrolling the seas will be released without being prosecuted".

The Foreign Office recognises the problem. The UK has given money to the Seychelles to support its legal system; two members of the Crown Prosecution Service have been on the islands to speed up trials, and three prison officers from the Isle of Wight have also been seconded to the Montagne Posse prison.

But the Seychelles can hold only a maximum of 70 pirates at a time, and has little prison capacity.

The hope is that new jails in the more stable areas of Somaliland and Puntland in the north of Somalia will house convicted pirates serving their prison terms, but this idea is still evolving.

Last year the United Nations Office on Drugs and Crime started work on the construction of two prisons at Garowe and Hargeisa.

It has also contributed to the opening of a counter-piracy courtroom in Mombasa.

"Our aim is to help set up a network of regional centres in Kenya, Mauritius, Seychelles and Tanzania to prosecute suspected Somali pirates who, if convicted, are returned to Somalia to serve their sentences in secure and humane prisons," said a Foreign Office spokesman.

"The first transfer of convicted pirates from the Seychelles back to Somalia took place at the end of March, signalling a step-change in the way we combat Somali piracy in the Indian Ocean region."

But though the steps are important, they are still small, and the regional legal systems are struggling to cope with the suspects already in custody, let alone ones in the future.

Which leaves some in the military mission asking if it is time for a rethink.

"There is an argument over whether the military should be doing any more than it already is," said one commander. "Somali piracy cannot be solved by us. It is primarily a civil problem, which needs to be solved on land, not at sea."